DOCUMENTS RECENTLY OBTAINED from the Department of Education’s Office for Civil Rights (OCR) reveal the agency’s systematic abuse of its authority during the Clinton administration. Under the direction of Norma Cantu, OCR has bullied school districts all over the country into implementing bilingual education programs that are bad law and bad policy. It has done so surreptitiously and with dubious legal justification.

The abuses are documented in a recent report published by the Center for Equal Opportunity, based on a review of approximately 160 “compliance letters” sent by OCR to school systems in 1996 and 1997. In a terse statement, Cantu called the report a “misleading interpretation of the real efforts of OCR,” but she offered no specific rebuttal and has disputed none of the facts in the report.

The problem is this: School districts are supposed to be allowed wide discretion in how they teach the English language to limited-English-proficient (LEP) children. But the Office for Civil Rights has an ideological preference for bilingual education, which segregates LEP students from students proficient in English for years, during which time they are instructed primarily in their native language and taught English only slowly. The alternative and better approach uses rapid immersion in English.

OCR has no legal authority to pressure school districts to implement bilingual education, yet it does so. Its highhandedness seems to become most pronounced in Democratic administrations. But the bureaucrats have generally lacked the nerve to announce their demand for bilingual education formally, let alone write it into law. Instead, they have pushed their agenda furtively but no less coercively, using “technical assistance” sessions, informal negotiations, and phone calls that minimize any paper trail. But the compliance letters now make clear what is going on.

OCR’s investigators are constantly in the classroom: They look over teachers’ shoulders, second-guess teachers and administrators, judge the quality of instructional materials, and generally intrude in ways never contemplated by the drafters of the civil rights statutes — the same statutes the agency supposedly enforces. OCR also encroaches on educational and staffing decisions, overrides parental choices, enforces quotas for gifted-and-talented programs, and requires burdensome evaluation and reporting procedures. But the major problem with the approach OCR wants local schools to take is that it identifies too many students as limited-English-proficient. It results in students — particularly Hispanics — who speak only English being placed in bilingual programs conducted in a language they do not understand.

This comes about because of the way OCR requires districts to use “home language” surveys of all their students. If any family member, even a grandparent, speaks a language other than English — even if there is no evidence or claim that the child speaks any language other than English — that student must be tested for English fluency. If the student then scores below a certain percentile — often the 40th or 50th percentile — or otherwise fails to achieve well academically, he or she is labeled limited-English-proficient and assigned to a bilingual program. Of course, by definition half of all children in the United States score below the 50th percentile on standardized tests, and many children proficient in English are poor students.

Not only does OCR lack the authority to force school districts to adopt any particular method of English instruction, but its method of choice — bilingual education — often violates federal law. When implemented OCR’s way, bilingual education programs segregate children on the basis of national origin, in violation of the 1964 Civil Rights Act, and provide them with substandard language instruction, in violation of the 1974 Equal Educational Opportunities Act.

School districts that balk at accepting OCR’s version of what the law requires face expensive legal proceedings (either an administrative hearing or referral to the Department of Justice) to avoid loss of all federal funding. Consequently, few schools challenge OCR’s requirements. In recent years, only two school systems, the Denver Public Schools and the San Juan School District in southeastern Utah, have challenged OCR when it pressured them to embrace its brand of bilingual education. Both have spent large sums of money defending their positions and now appear likely to settle the cases to avoid further expenditures.

California was one of the states where OCR worked hard with state officials to ensure that bilingual education was given the highest priority. Because of the evident failure of the policy, the state’s voters passed an initiative this June effectively ending it. A federal judge quickly declined to block the new law’s implementation since he did not find it to be inconsistent with any federal civil rights provision. But some California school districts have raised questions about complying with the new law because they believe they may still be bound to implement bilingual-plan agreements entered into with the Office for Civil Rights.

An essential attribute of the rule of law is that the government’s rules are publicly known and subject to open debate and formal objection — not secretly adopted and enforced. The government’s standards for students who are not native speakers of English should be clarified, subjected to public comment, and formally adopted as regulations.

OCR’s record also calls for oversight hearings before Congress. Tom Tancredo — a former regional representative of the Department of Education and recently elected member of Congress — is especially interested in the issue. At a recent press conference announcing the newly uncovered evidence of OCR abuse, he called bilingual education “a political activity rather than an educational activity.” He’s right, and of course Cantu was made the head of OCR because of her career as a bilingual-education lawyer and activist.

OCR’s enforcement policies affect thousands of school systems across the nation — virtually every public system, since all but a handful receive federal money — and the activities of its staff strongly influence educational decisions and spending priorities. A federal civil rights enforcement agency should not act as an advocate for particular instructional programs or curricular methodologies and certainly should not do so on behalf of a narrow political constituency.

After more than 25 years of experimentation, the best research shows bilingual education to be a less effective instructional method than English-intensive alternatives. The Office for Civil Rights should not be allowed to turn a blind eye to the segregative effects of bilingual education or its pedagogical failures. And it certainly should not be allowed to clandestinely coerce schools into following such policies, claiming a legal authority the agency does not have.

Jim Littlejohn is a former director in the Office for Civil Rights and the author of the report on OCR. Roger Clegg is general counsel of the Center for Equal Opportunity.



Comments are closed.